Justice Kennedy on Dignity
70 Pages Posted: 1 Oct 2020
Date Written: 2020
Appeals to dignity are a staple of political and legal discourse in the United States, as they are in other countries. Dignity is invoked frequently in judicial decisions in the United States, including in numerous opinions of the United States Supreme Court. References to dignity by Justices of the Supreme Court are both interesting and, for some, puzzling, because there is no mention of dignity in the Federal Constitution at all. In modern times perhaps no Justice has invoked dignity more frequently and more substantively than Justice Anthony Kennedy. Kennedy is said to have “penciled in” dignity as a constitutional value. This article will assert and defend the thesis that what Kennedy “penciled in” is a constitutional norm of dignity as integrity. In Kennedy’s constitutional jurisprudence, the concept of dignity is enlisted to defend and affirm the integrity of a person, from the most basic (physical integrity) to the most reflective (social integrity) aspects of personhood. Kennedy views humiliation as the extension of cruelty from the physical to the psychological realm of suffering. Dignity is meant to guard against cruelty in all of its dimensions. Viewed this way, dignity is an existential value, invoked to defend the threshold conditions (privileges and immunities) that are necessary for a person to exist as an integral whole. The article develops and defends its thesis through a systematic and detailed examination of all of Justice Kennedy’s opinions which invoke dignity, both on the Supreme Court and on the Ninth Circuit where he served before his elevation to the Supreme Court. The article will also examine his speeches and testimonies to the extent that they shed light on his understanding of what dignity entails. The article shall occasionally refer to opinions of other Justices of the Supreme Court, such as Justice Brennan, and those of constitutional courts of other countries, such as the German Constitutional Court, for purposes of clarifying Justice Kennedy’s view of dignity and the norm of dignity as integrity.
Keywords: Kennedy, dignity, human rights, constitutional values, integrity
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